2016 PLP 2 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioners-defendants have challenged the judgment and decree dated 08.03.2011 passed by learned Additional District Judge, Kallur Kot, whereby two appeals (one filed by the plaintiff/respondent No.1 and the other by Muhammad Afzal Khan etc.) were accepted, in result of which, judgment and decree dated 18.12.2009 passed by learned Civil Judge, Kallur Kot, dismissing the suit filed by respondent No.1/plaintiff were set aside.

2. The brief facts as leading to this civil revision are that the plaintiff/respondent No.1 on 01.09.2003 filed a suit for declaration that he is joint owner in possession of suit land in accordance with share mentioned therein and challenged mutation of inheritance bearing No.655 attested on 13.02.1931, mutation No.682 attested on 15.06.1931, mutation of gift No.1054 attested on 01.12.1933, mutation of inheritance No.1799 attested on 14.03.1941 and mutations of Tamleek in favour of Muhammad Hassan Khan son of Subhan Khan are against the law, facts, based upon misrepresentation and fraud, therefore are not binding upon the plaintiff as well as the formal defendants. He also challenged mutations of sale, gift, exchange, mortgage bearing No.2678 attested on 02.02.1997, 2580 attested on 13.06.1996, 2665 attested on 31.12.1997, 2683 attested on 27.02.1997, 2701 attested on 13.03.1997, 2715 attested on 05.06.1991 and 1419 attested on 21.12.1999. The case as pleaded by the plaintiff in the plaint is that the propositus of the parties and the last owner Subhan Khan son of Nasir Khan, Caste Pathan Kucha Khel, resident of Jandanwala Tehsil Bhakkar District Mianwali, died in the year 1930. His pedigree-table has been mentioned in Para 1 of the plaint, wherein it has been mentioned that at the time of death of Subhan Khan, he left behind one son Muhammad Hassan Khan, three daughters Mst. Soorat Khatoon, Mst. Alam Khatoon, Mst. Daulat Khatoon and one widow Mst. Fateh Khatoon. All these children were from Mst. Fateh Khatoon. The propositus was having two wives, one of whom namely Mst. Mehrai Khatoon died issueless in his life time. The plaintiff is one of the sons/legal heirs of Mst. Alam Khatoon, who died in the year 1994. It is the case of plaintiff that at the time of attestation of mutation of inheritance by practicing fraud by the son Muhammad Hassan Khan, daughters of deceased have been disinherited. It is stated by the plaintiff that the defendants used to give share of his produce to the plaintiff and four months prior to the filing of suit they have refused to give his share, then he checked the record of revenue department, whereby he came to know that through the impugned mutations daughters of deceased have been defrauded. It has been prayed that all the mutations be declared null and void and suit be decreed.

3. The defendants Nos.1 to 4 filed their joint written statement, wherein it has been mentioned that on the basis of custom the mutation was sanctioned. Some of the defendants filed consenting written statement, whereas some have filed contesting written statement. From the divergent pleadings of the parties, learned trial court framed issues and invited the parties to produce their respective evidence. The plaintiff opted to appear as his own witness only and produced 29 documents as Ex.P-1 to Ex.P-29. The defendant No.1 (Nasar Ullah Khan) appeared as DW-1 and produced Ex.D-1 and Ex.D-2. After the closing of trial, vide judgment and decree dated 18.12.2009 suit was dismissed by learned trial court. Two appeals were filed before learned first appellate court, one by the plaintiff/respondent No.1 and the other by Muhammad Afzal Khan etc, the defendants. Learned Additional District Judge vide consolidated judgment and decrees dated 08.03.2011 accepted both the appeals and decreed the suit. Hence, this civil revision by the contesting defendants-petitioners.

4. Learned counsel for the petitioners-defendants argues that the plaintiff/respondent No.1 opted to appear as a sole witness and very short statement has been got recorded, whereas he himself produced documentary evidence in shape of Ex.P-1 to Ex.P-29; that no defect in the mutations has been highlighted except the fraud is alleged by the plaintiff/respondent; that the statement of plaintiff is that mutations are not binding upon him and that the defendants gave him share of produce and when they stopped paying share of produce he has filed the suit; that there is absolutely no mention of rights of his mother from whom he is claiming the right and that there is absolutely no mention that whether his mother was ever paid any share of produce or she claimed the ownership or she even ever presumed herself owner of the suit property; that even the statement of plaintiff is wrong to the extent that Mst. Fateh Khatoon was widow of Subhan Khan; that the other wife of Subhan Khan namely Mst. Mehrai Khatoon was alive at the time of death of Subhan Khan and she was the widow, whereas Mst. Fateh Khatoon died in his life time. Learned counsel further argued that the suit has been filed after 72 years of the attestation of mutation; that only Masood Iqbal Khan has challenged the mutations in the suit and neither the other legal heirs of Mst. Alam Khatoon nor the other two daughters or their legal heirs have challenged the inheritance mutation. Further states that the simple defence of petitioners-defendants is that mutations were attested on the basis of custom; that even the facts pleaded by the defendants are proved by the documentary evidence led by the plaintiff himself; that there was no locus standi with the plaintiff to file the suit after 72 years of the attestation of inheritance mutation when his mother died in the year 1994 and in her whole life time she never claimed any right in the suit property and even Muhammad Hassan Khan died in the year 1992. While relying upon "PLD 2011 Supreme Court 657 (Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs)" learned counsel argues that the mother of plaintiff died 64 years after the attestation of inheritance mutation and never challenged the same in her life time, therefore by scrutinizing the oral as well as documentary and substantial evidence it was to lead that there is a waiver on the part of mother of plaintiff; that atleast in 18 Jamabandies the name of Muhammad Hassan Khan after incorporation of inheritance mutation in his name and after his death the names of his legal heirs were available, whereas the plaintiff who himself is a practicing Lawyer and at the time of filing of suit he was senior Advocate having 30 years practice and how he himself believes the story narrated by him; that even the mutation No.94 was attested after the death of Muhammad Hassan Khan for his inheritance on 28.05.1992 and even the suit was filed after 11 years of attestation of mutation of inheritance of Muhammad Hassan Khan. While relying upon "2007 SCMR 1446 (Atta Muhammad v. Maula Bakhsh and others)" learned counsel states that even in a case of inheritance the delay exists adversely. Further states that for condonation of delay the specific date of knowledge and cause of action must be given; that on the base of vague explanation and without mentioning the specific date of knowledge of impugned mutation nor any explanation tenable in law was provided to justify condonation of delay, delay condoned was in violation of law and was not sustainable. In. this context, reliance is placed upon "PLD 2011 Supreme Court 657 (Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs) as well as 2011 SCMR 222 (Jamila Khatoon and others v. Aish Muhammad and others)". Learned counsel states that even with regard to delay the plaintiff was bound to plead specifically in accordance with Order VI of the C.P.C. While relying upon the pleadings as well as the statement of plaintiff that the defendants have refused to give share of produce, states that at least it is admitted by the plaintiff himself that he is not in possession of suit property; that the mutation of inheritance of Subhan Khan was attested on the basis of custom prevalent in the family of deceased, which is proved by the documentary evidence led by the plaintiff-respondent No.1 himself; that even he has filed C.M. No.3 of 2011 for permission to produce mutations of Pathan Kucha Khel and Pathan Masti Khel, as in all these inheritance mutations of Pathan Kucha Khel, sons have been given the land and daughters have been excluded. While relying upon all the judgments of august Supreme Court upon the point of application of section 2 A of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) introduced through West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) learned counsel states that its retrospective effect is since the application of Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) and not prior thereto. In this context, reliance has been placed upon "PLD 2012 Supreme Court 501 (Ghulam Haider and others v. Murad through Legal Representatives and others)". Lastly learned counsel prays for acceptance of this civil revision and setting aside the impugned judgment and decrees passed by learned first appellate court.

5. On the other hand, respondent No.1/plaintiff, who himself is an Advocate argues his own case that there is no defence pleaded by the petitioners-defendants in their written statement, as in preliminary objections it is mentioned that the impugned mutation of inheritance was attested on the basis of custom. At this stage, when questioned to the plaintiff/respondent No.1 that the same defence has been taken in response to Para 2 of the plaint, as in the written statement it is clearly mentioned that the impugned mutations were attested on the basis of custom, then the plaintiff/respondent No.1 sit over the point that even the sisters of petitioners have accepted his case. I have noticed that the brothers and sisters of plaintiff have contested his suit and in the appeal brothers and sisters of defendant No.1/petitioner have supported the plaintiff, therefore this contest as well as admission by some of the parties is not relevant for determination of point in issue in this civil revision. The plaintiff/respondent No.1 argues that even the case of defendants was that Mst. Alam Khatoon was not the daughter of deceased Subhan Khan; that they cannot change their version now, as during the arguments learned counsel for the petitioners-defendants admitted that Mst. Alam Khatoon was the daughter of deceased Subhan Khan. Further, respondent No.1 states that all the mutations are just waste papers and do not create any right and in the family of parties Shariat was applicable and all the matters of inheritance were decided in accordance with Shariat; that the retrospective effect of section 2-A will be from the date of death of the Propositus and all his legal heirs will inherit him in accordance with the Shariat. Lastly prays for dismissal of instant civil revision.

6. Learned counsel representing the other respondents states that the parties were governed through Personal Law and custom was not applicable; that in case of inheritance the limitation is not a hurdle; that when Mst. Alam Khatoon was the daughter of deceased and there were two other daughters, they should have mentioned in the impugned mutation, even if it was being sanctioned on the basis of custom.

7. I have heard the learned counsel for the parties at full length and also gone through the voluminous record as well as case law referred to by them.

8. Both the parties have produced photocopies of customary law with regard to their claim. Respondent No.1/plaintiff has produced the law to show that mutation does not create or confer a right and further that to prove a mutation the production of Patwari and other revenue official is necessary, therefore to this extent judgments relied by the plaintiff-respondent No.1 are not applicable to the facts of this case. In this case the plaintiff has challenged the mutations of inheritance, which were passed even 72 years prior to the filing of suit and certified copies of which have been produced by the plaintiff. By scrutiny of mutation No.655 the certified copy of which has been produced by the plaintiff himself shows that this mutation was got entered by one Ramzan, as on his report the same was entered by the Patwari and after its scrutiny this mutation was attested in favour of Muhammad Hassan Khan, the only son of the Propositus, Subhan Khan. Through mutation No.682 which has been produced as Ex.P-2 and it is `Sehat-Warasat' some property through Sehat-Intiqal from the name of Muhammad Hassan Khan in whose favour whole of the property of Subhan Khan was transferred, has been transferred in favour of Mst. Mehrai Khatoon widow of Subhan Khan as limited owner for 'Guzarah'. In this mutation through `Sehat-Intiqal 1/4 share has been given to the widow of deceased for `Guzarah'; Wherein it is clearly mentioned that the deceased was having three daughters. Further through mutation No.1054 copy of which has been produced as Ex.P 3, this mutation is of Tamleek by Muhammad Hassan Khan in favour of Mst. Mehrai Khatoon. It is clearly mentioned in this mutation that this has been got entered by Sher Muhammad Khan, sister's husband of Muhammad Hassan Khan, who is minor and through this mutation the property has been transferred as gift Ta-Hayat to the step mother of donor i.e. Mst. Mehran and there is mention of three daughters of Subhan Khan. Through mutation No.1799 which has been produced as Ex.P-4, on the death of Mst. Mehran the property was reverted to Muhammad Hassan Khan, as the property was given to Mst. Mehran as life interest. By scrutiny of all these mutations produced by the plaintiff himself, it is clear that in these mutations it is mentioned that Muhammad Hassan Khan in whose favour inheritance mutations on the basis of custom have been sanctioned, was minor at that time. Further that the mutation of inheritance Ex.P-3 was got entered by Sher Muhammad Khan, who was husband of sister of Muhammad Hassan Khan, he not only appeared at the time of attestation of mutation but also got entered this mutation. There is mention of three daughters of the Propositus in this mutation and further when the property was transferred in favour of widow of the Propositus as life interest, in these circumstances it is abundantly clear that the mutation of inheritance of Subhan Khan was attested on the basis of custom and further that there is no question of fraud or misrepresentation by the son of deceased i.e. Muhammad Hassan Khan, as he was minor. The argument of respondent No.1/plaintiff who himself is an Advocate with regard to mutation of inheritance that every mutation is based on a waste paper, is not sustainable under the law. It is correct that the mutation by itself does not create or confer a right or title in the property but it is based upon another event. When these mutations are on the basis of event of death of Subhan Khan, therefore the matter was reported to the revenue department and by the scrutiny of event and the record, mutations were attested. Even the transferee i.e. Muhammad Hassan Khan was minor, therefore the allegations of fraud and misrepresentation upon Muhammad Hassan Khan are factually incorrect as is transpired by the documentary evidence led by the plaintiff himself. When the event of death of Subhan Khan is not denied, in this view of the matter, general principle is that mutation by itself does not create or confer the title or interest. The simple statement of the plaintiff that mutation is based upon misrepresentation and fraud, was not sufficient to brush aside the subsequent mutations, as the same have been attested in accordance with the procedure provided under the recording of mutations applicable at that time and at least 18 Jamabandies have been prepared after the attestation of impugned mutation. The argument of respondent No.1 that the petitioners/defendants were obliged to produce attesting witnesses of mutation the revenue officials, is legally not sustainable under the law, as after 74 years of attestation of mutation the same has been challenged, therefore it is impossible to produce such witnesses to prove the mutation. Even otherwise the onus to prove the transaction shifts upon the beneficiary when the plaintiff succeeds in discharging his initial onus to rebut the transaction. In case in hand the plaintiff failed to do so.

9. With regard to the limitation and filing of suit by one son of the daughter of Propositus is concerned, when his mother who died after 64 years of the attestation of impugned mutation and even after 11 years after the death of his mother the suit has been filed, therefore in the light of law laid down in the judgment reported as "PLD 2011 Supreme Court 657, 2007 SCMR 1446 and 2011 SCMR 222", this delay of filing of suit is fatal against the rights of plaintiff-respondent No.1 as well as it creates a waiver on behalf of his mother as she never challenged the impugned mutation in her life time. This suit was certainly time barred, as such liable to dismissal on this score.

10. So far as the application of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) is concerned, its effect has been discussed in detail in the latest judgment of august Supreme Court of Pakistan reported as "PLD 2012 Supreme Court 501" and I have the honour to bow before the clear judgment of august Supreme Court wherein all the previous judgments on the point have been discussed and an authoritative view has been given. Section 2-A applies since the application of Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) i.e. since March 15, 1948. In this view of the matter, the last male owner was Subhan Khan whose inheritance opened in the year 1930 at the time of his death, therefore through mutation No. 655 attested on 13.02.1931 in accordance with the custom his minor son Muhammad Hassan Khan inherited him. Through this mutation Muhammad Hassan Khan will be presumed to have inherited the suit property (Agricultural Land) under the Muslim Personal Law (Shariat), as admittedly Subhan Khan was Muslim. The suit was absolutely not maintainable.

11. In the light of what has been discussed above, this civil revision is accepted and the impugned judgment and decrees dated 08.03.2011 passed by learned appellate court are set aside and that of learned trial court are restored. Resultantly, the suit filed by respondent No.1/plaintiff shall stand dismissed. ZC/N-46/L Revision accepted.